Patrick J. Mason v. Lakeville Fire Department (SPR 20190014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 16, 2019 SPR19/0014 Chief Daniel Hopkins Town of Lakeville -Fire Department 346 Bedford Street Lakeville, MA 0234 7 Dear Chief Hopkins: I have received the petition of Patrick J. Mason appealing the response of the Town of Lakeville Fire Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mason requested the following categories of records: 1. Any and all documents relating to complaints involving [ an identified Department employee] during his time served while on the Lakeville Fire Department. 2. Any and all disciplinary action or hearings involving [ an identified Department employee]. 3. Any and all witness interviewed concerning [a n identified Department employee] of complaints filed. Previous appeal This request was the subject of a previous appeal. See SPRl 8/2109 Determination of the Supervisor of Records (January 10, 2018). I closed SPRl 8/2109 upon learning the Department provided Mr. Mason with a response to his request dated December 28, 2018. Unsatisfied with the Department's response, Mr. Mason petitioned this office and this appeal, SPR19/0014 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Daniel Hopkins SPR19/0014 Page2 January 16, 2019 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In its December 28th response, with respect to the third part of Mr. Mason's request, the Department indicates that it does not possess responsive records. With respect to the first and second parts of Mr. Mason's request, the Department indicates it is withholding the responsive records pursuant to Exemptions ( c) and ( d) of the Public Records Law and the common law attorney-client privilege. G. L. c. 4, § 7(26)(c-d). Exemption (c) Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be

Daniel Hopkins SPR19/0014 Page 3 January 16, 2019 considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The Department explains that "[i]n this case, any complaints made against [a n identified Department employee] in his capacity as an employee of the Town and any resulting disciplinary action taken against [a n identified Department employee] would fall under the exemption, and the Fire Department will withhold them pursuant to the first clause of Exemption ( c )." Based on the Department's response, I find that the Department has not met its burden of specificity to establish that the responsive records in their entirety constitute one of the core categories of personnel information that the Wakefield court found to be exempt under the personnel clause. Furthermore, the Department has not identified the specific records it believes fall under Exemption (c). See G. L. c. 66, § lO(b)(iv). Consequently, the responsive records may not be withheld from disclosure under the first clause of Exemption ( c ). Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)(d). Exemption ( d) is intended to avoid the disclosure of documents while policy positions are being developed and the deliberative process remains ongoing and incomplete. The deliberative process is insulated from scrutiny only until such time as the process is completed. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230,237 n.8 (1988). Furthermore, the preparation of and involvement in litigation by a public body entails the development of "policy positions" by that body, positions that are subject to change and refinement throughout the litigation process. The withholding of public records is permitted in so far as they concern the ongoing litigation or administrative proceedings of that public body. See Lafferty v. Martha's Vineyard Commission, Superior Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS 107, *10. The Department indicates that "[t]here is a pending lawsuit against the Town of Lakeville and [an identified Department employee]" and cites to the docket number. The Department explains that "[i]t is the Fire Department's position that records responsive to [Mr. Mason's] request are exempt from disclosure under Exemption ( d), due to the pendency of this litigation and the relationship between the responsive records and the Fire Department's development of its litigation strategy."

Daniel Hopkins SPR19/0014 Page 4 January 16, 2019 The Department's written response does not explain with specificity to Mr. Mason what responsive records it possesses nor does it explain how those records concern the ongoing litigation of the Department. As a result, the Town has not explained how the responsive records are exempt from disclosure in their entirety pursuant to Exemption ( d). Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial Court has found that the Supervisor of Records may make "a decision ... delineating what documents among ... requested reports are privileged or exempted from the public records act." Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609 (1993). A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney client privilege "are required to produce detailed indices to support their claims of privilege." Suffolk, 449 Mass. at 460. The Department indicates that "request number 1 can be construed to broadly apply to records such as emails containing confidential communications between Town officials, including the Chief of the Fire Department and their attorneys involved in the above-referenced lawsuit for the purpose of obtaining legal advice to such matter, for which the attorney-client privilege has not been waived. Therefore, in addition to Exemption ( d), any such records may be withheld pursuant to the attorney-client privilege." The Department has not established the existence of an attorney-client relationship under these circumstances. Furthermore, the Department did not explain how the records are communications received during the course of the client's search for legal advice, nor whether the privilege was waived. See Suffolk, 449 Mass. at 450 n.9. In addition, the Department has not identified the specific records that it believes fall into the attorney-client privilege. Records custodians seeking to invoke the common law attorney-client privilege "are required to produce detailed indices to support their claims of privilege." Id. at 460. Conclusion Given that the Department has not met its burden to explain how an exemption applies to

Daniel Hopkins SPR19/0014 Page 5 January 16, 2019 the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Mason with responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick J. Mason